EXPERT WITNESSES IN COMPETITION DISPUTES

CD: Reflecting on the last 12 months or so, how would you describe the frequency and nature of competition disputes? What are some of the common sources of conflict?

Blalock: Department of Justice (DOJ) and Federal Trade Commission (FTC) investigations are potentially reliable indicators of broader trends in competition disputes. Actions taken by the antitrust agencies can give rise to class actions, opt-out litigation, state attorneys general investigations and possibly even arbitration or investigations by enforcers in foreign jurisdictions. For example, if the trend in price fixing disputes follows trends in DOJ criminal antitrust investigations, then one might anticipate fewer price fixing cases in the next few years. The number of criminal antitrust cases involving price fixing brought by the DOJ in 2017 fell by roughly half year-on-year, continuing a similar decline relative to 2015. However, these trends, more generally, must be taken with a pinch of salt. Antitrust enforcers have demonstrated an interest in expanding the frontiers of competition law to address new concerns arising in constantly evolving markets, such as antitrust markets for data and ‘algorithmic collusion’. Given greater uncertainty about the outcomes of investigations into these new topics, the allocation of agency resources to these ‘frontier’ matters may limit resources available to investigate more traditional areas of dispute in the near term – one possible explanation for recent declines in DOJ criminal antitrust cases – and possibly lead to more non-traditional competition disputes in the future.